C-186/87

COWAN v TRÉSOR PUBLIC

OPINION OF MR ADVOCATE GENERAL LENZ delivered on 6 December 1988 *

Mr President, (1) the acts caused physical injury resulting Members of the Court, in death, permanent invalidity or total incapacity for work lasting for at least one month;

A — Facts

1. The reference for a preliminary ruling (2) the harm consists in serious interference with which I am concerned today, with the enjoyment of life as a result of submitted by a board attached to the loss or reduction of income, increase in tribunal de grande instance, Paris, concerns expenses, inability to carry on an occu­ the prohibition of discrimination with pation or physical or psychological regard to the compensation of victims of harm; crime. The case raises fundamental questions regarding the freedom to provide services and the concomitant rights of Community citizens.

2. On 11 June 1982, during a visit to Paris, (3) the injured person cannot obtain the applicant in the main proceedings, a effective and adequate compensation United Kingdom national, was assaulted, from any other source.' robbed and injured at the exit from a metro station. On 26 May 1983 he applied to the board for compensation for his injuries. His application is based on Article 706-3 of the code de procédure pénale (Code of Criminal Procedure), pursuant to which:

down in the agreement or that they are limits of the freedom to provide services. holders of a residence permit'. Unlike the free movement of goods and freedom of movement for persons the freedom to provide services has not yet given rise to such an abundant case-law that it is possible to speak of a complete system of freedom to provide services. As this case 4. On the basis of the latter provision, the shows, there are still questions regarding its agent judiciaire du Trésor (legal represen­ scope and the criteria defining its limits. tative of the Treasury) submitted that the applicant had no right to compensation. The applicant, on the other hand, argued that the rule in issue was incompatible with Community law, inasmuch as it constituted 7. The board, attached to the tribunal de unlawful discrimination on grounds of grande instance, which is seized of the main nationality. The board hearing the matter proceedings must be regarded as a 'court or therefore stayed the proceedings and tribunal' for the purposes of the second referred the following question to the Court paragraph of Article 177 of the EEC Treaty. of Justice for a preliminary ruling: It is an independent judicial body responsible for adjudicating on claims for compensation by victims of crime. It is a court of compulsory jurisdiction, conceived as a permanent body on a legislative basis. The board arrives at its decisions by the 'Are the provisions of Article 706-15 of the application of legal rules, in particular the code de procédure pénale, which governs code de procédure pénale. It thus meets all cases where a foreign national who is the the criteria laid down by the case-law of the victim of an offence in France may obtain Court of Justice for the identification of a compensation from the French State, 'court or tribunal' for the purposes of compatible with the prohibition of discrimi­ Article 177 of the EEC Treaty. 1 nation contained inter alia in Article 7 of the EEC Treaty?'

Court may, on the basis of the factual and of being an independent subject of legal background of the case, restate the Community rights and obligations. question so as to address the issue of Community law. It may thus, in its ruling, provide the national court with criteria enabling it to decide the particular case before it. 12. No comprehensive framework for the freedom to provide services has yet been developed. It is clear from the legal defi­ nition contained in Article 60 of the EEC Treaty that 'services' for this purpose are services which 'are normally provided for remuneration, in so far as they are not 9. The question in this case may be restated governed by the provisions relating to in the following manner: freedom of movement for goods, capital and persons'. That wording suggests that the provision of services is something of a residual category. Inasmuch as the provisions on the objects and activities of the Community (Article 3 of the EEC Treaty) place the provision of services on 'Can a difference in treatment, on the basis the same footing as the movement of goods, of nationality, of victims of crime who apply persons and capital, its area of application for State compensation constitute discrimi­ cannot be restricted to a residual function. nation on grounds of nationality contrary to It plays an independent role as one of the Community law?' fundamental freedoms.

case-law of the Court of Justice, in the area 15. The idea that the freedom to provide of transnational broadcasting 4 and in the services may be exercised by way of a area of insurance. 5 temporary change of location by the person providing the services has also been rein­ forced by Community action and legal measures. Measures concerning the provision of services have frequently been adopted at the same time and in the same terms as provisions on freedom of estab­ lishment. The general programme for the abolition of restrictions on freedom to provide services 6 and the general programme for the abolition of restrictions 14. For the provision of services of this kind on freedom of establishment 7were adopted the movement of persons across frontiers is on the same day, were published together not absolutely necessary. There are, and are regularly cited together. however, other conceivable forms of trans­ national trade in services. These are cases in which either the person providing services goes to another Member State or the recipient of services receives them in another Member State. These movements are not covered by freedom of movement for persons as it has usually been defined. There is, however, a need for Community 16. Council Directive 75/362/EEC of 16 law to govern that situation, if we do not June 1975 contains provisions concerning wish the freedom to provide services to be both matters, freedom of establishment and reduced to trade in services which does not the provision of services. The directive entail any movement of persons. It is clear concerns the mutual recognition of from the EEC Treaty and from secondary diplomas, certificates and other evidence of Community legislation that that was never formal qualifications in medicine, including the intent of the Community legislature. measures to facilitate the effective exercise The paradigm of the provision of services of the right of establishment and freedom to under Article 59 of the EEC Treaty is the provide services. 8 Other examples are person who in order to provide services Directive 73/148/EEC on the abolition of goes temporarily to another Member State. restrictions on movement and residence That may, but is not necessarily, the place within the Community for nationals of of residence of the recipient of the services. Member States with regard to establishment The person for whom the services are 9 and the provision of services and Directive intended may very well receive them in 75 / 34 / EEC on the right of nationals of a another place. All that is necessary is that Member State to remain in the territory of the person providing the services and their another Member State after having pursued recipient should not be resident in the same therein an activity in a self-employed place. capacity. 10

17. Although most attention has been moving within the Community either in focused on the person providing services, order to pursue activities as employed or that cannot mean that the recipient of self-employed persons, or as recipients of 12 services plays no role from a legal point of services'. That theme appears again in view. As a necessary party to the transaction Article 1 of the directive, pursuant to which: he too is a potential beneficiary of the 'The provisions of this directive shall apply freedom to provide services under to any national of a Member State who Community law. It follows neither from resides in or travels to another Member Article 59 of the EEC Treaty nor from State of the Community, either in order to secondary legislation that he can receive the pursue an activity as an employed or self- services only at his place of residence. If it is employed person, or as a recipient of 3 sufficient, therefore, for the provision of a services'. 1 The directive governs the obli­ service to be covered by Community law gation of the Member States to issue a that the person providing the service and its residence permit, and provides inter alia that recipient should be resident in different the person concerned is to be allowed to Member States, it must now be determined remain temporarily in the territory of the what consequences that has for the legal Member State pending a decision either to position of the recipient of the service. grant or to refuse a residence permit (see Article 5 (2)). A more recent directive 'on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to 18. In the general programme for the establishment and the provision of 4 abolition of restrictions on freedom to services' 1 requires the Member States to provide services the recipient of services is abolish restrictions on the movement and already referred to as a person on whom residence of nationals of Member States certain restrictions are not to be placed. In wishing to go to another Member State as Title III it is stated that the restrictions set recipients of services (Article 1(1) (b)). out therein are to be eliminated 'whether Article 4 (2) provides that: they affect the person providing the services directly, or indirectly through the recipient of the service or through the service itself'.

Where the period does not exceed three months, the identity card or passport with which the person concerned entered the 22. We must therefore consider defining the territory shall be sufficient to cover his stay. term 'tourist' for the purposes of The Member State may, however, require Community law. If it is borne in mind that the person concerned to report his presence tourists are only one category of recipients in the territory.' of services, it becomes apparent that such a definition is of dubious utility. In any event it is not important from a legal point of view to lay down strict definitions of the individual possible groups of potential reci­ pients of services and distinguish them one 20. Since the implementation of that from another. What is important is to give directive in national law a recipient of some substance to the notion of a recipient services has had a primary right to remain in of services. a Member State of which he is not a national. In that respect he is a beneficiary of the principle of freedom of movement for persons contained in Article 3 (c) of the 16 EEC Treaty. That position under Community law may be restricted in an unlawful manner, in which case a restriction 23. Even if it is desired to define the term imposed by a national provision will be 'tourist' in an abstract manner in inapplicable as contrary to Community law. Community law, there is no compelling reason to give decisive weight for the purposes of the definition to any one of the possible services received. Reference, for example, to an overnight stay in a hotel, as was suggested at the hearing, would certainly catch a significant proportion of 21. The question which now arises is travellers. There could be no doubt as to the whether a tourist is to be regarded poten­ receipt of a service in the form of accommo­ tially or effectively as a recipient of services. 17 dation. That would also constitute an In Joined Cases 286/82 and 26/83 the element in common with other potential Court held that 'tourists, persons receiving recipients of services, such as, according to medical treatment and persons travelling for the Court, persons travelling for the purpose the purpose of education or business are to 18 of education or business. It would, on the be regarded as recipients of services'. There other hand, leave out of the scope of the is no reason to retreat from that statement definition a significant number of travellers of the law. However, it is not made clear who may very well make considerable use of tourist facilities and thus receive services. 16 — Judgment of 7 July 1976 in Case 118/75 Watson and Belmann [1976] ECR 1185, paragraph 16. 17 — supra, paragraph 16. 18 — Joined Cases 286/82 and 26/83, supra, paragraph 16.

27. Where it is necessary, in a specific legal context such as that of the present proceedings, to define the characteristics of a person as a recipient of services, there are two possible approaches: 31. I have already referred to the problem that not only facilities specifically for tourists but also services which are provided equally to the local population may entitle the persons concerned to rely on the 28. (i) Reasoning ex ante, one might focus freedom to provide services. That is true in a general manner on the services to be both of cultural facilities and of certain means of transport. It is obvious that 19 — Survey carried out for lhe Commission in June 1986 by European Omnibus Survey, European File, No 9/87. transport facilities play an important role in

OPINION OF MR LENZ — CASE 186/87

35. We must now turn to the argument to the effect that compensation by the State 33. At first sight Article 61 of the EEC can itself be regarded as a service covered Treaty might be regarded as an obstacle to by Community law. Such an approach is not the treatment of national transport under­ supported by the examples set out in Article takings as providers of services to tourism. 60 in the definition of 'services' for the That article states that freedom to provide purposes of the Treaty. 'Services' for the services in the field of transport is to be purposes of the Treaty are services normally governed by the provisions of the Title provided for remuneration, and include in relating to transport. That objection, particular activities of an industrial and however, can be rejected as superficial. commercial character and the activities of craftsmen and of the professions. Even if some argument could previously have been made, certainly after the clear statements in 21 the judgment in Case 263/86 on the question whether State education can constitute a service for the purposes of the Treaty there is no basis for treating a social measure financed from public resources as a

34. Article 61 of the EEC Treaty concerns 20 — Judgment of 22 May 1985 in Case 13/83 Parliament v Council [1985] ECR 1513. above all the transnational provision of 21 — Judgment of 27 September 1988 in Case 263/86 Belgian services as a primary subject-matter of the State vHumbel[1988] ECR 5365.

COWAN v TRÉSOR PUBLIC

38. Social welfare benefits can be of relevance from the point of view of Community law in particular in the area of a common social policy or with regard to 41. Conditions of entitlement for a scheme freedom of movement for workers, where of compensation for victims of crime under the objective is complete integration of the which the benefit of the scheme is restricted group concerned. They are not the proper to nationals of the Member State subject-matter of the freedom to provide concerned, foreigners who possess a services. 24 — Judgment of 27 October 1982 in Joined Cases 35 and 36/82 Morson and Jhanjan v Netherlands [1982] ECR 3723 22 — Case 263/86, supra, paragraph 17 25 — On the applicable legal basis see the judgment of 14 July 23 — Case 263/86, supra, paragraph 18 1977 in Case 8/77 Sagulo and Others [1977] ECR 1495

OPINION OF MR LENZ — CASE 186/87

residence permit and foreigners whose 44. Compensation for victims of crime must country of origin has concluded a reciprocal be understood as an aspect of public agreement may thus be contrary to security and public order. It is compensation Community law when they constitute a for infringement of a right which it is the 'restriction' of the freedom provided for duty of the State to protect but which in the under Community law. Discrimination on specific case it was not able to safeguard. grounds of nationality can constitute such a restriction.

46. A Community citizen who wishes to enjoy the same level of protection as a national of the State concerned is compelled by the compensation scheme in question to take out insurance to cover the relevant risk. 43. On the issue of a restriction I should The resources necessary for that purpose like to focus first of all on the second represent a reduction in the budget at his element, that of an obstacle to access to or disposal. It can certainly be regarded as an the exercise of activities. Let me reiterate impediment to the right of temporary what I have already stated: what is residence. protected is freedom of movement for persons for the purpose of receiving services. In my view the refusal of the host country to grant compensation does not affect access but does affect the exercise of the freedom. That is to say, a Community citizen who does not belong to a privileged 47. The impediment to the right of category under Community law enjoys a temporary residence which lies in the failure reduced level of protection with regard to to grant compensation to certain his most personal rights. Community citizens who are victims of

27 — On the division of jurisdiction with regard to criminal law 26 — Judgment of 14 January 1988 in Case 63/86 Commission v and procedure see the judgment of 11 November 1981 in Aury [1988] ECR 29, paragraphs 12 and 13. Case 203/80 Casali [1981] ECR 2595.

COWAN v TRÉSOR PUBLIC

28 — Judgment of 12 February 1974 in Cast 152/73 Sotgiuv Deutsche Bundespost [1974] ECR 153 29 — Casr 63/86, supra.

OPINION OF MR LENZ — CASE 186/87

suffered, something with which we are quite detriment of foreign victims of crime, was familiar in civil and public law in the form contrary to the standstill obligation of claims for damages or compensation. In contained in Article 62 of the EEC Treaty. claims for compensation against the State As the Commission's representative funds from the State budget are used, and correctly observed at the hearing, since the such payments are not regarded as social end of the transitional period Articles 59 welfare payments. The fact that the State and 60 of the EEC Treaty are directly did not cause the harm is no obstacle to this applicable, so that any impediment to the approach. In enacting legislation for the freedom to provide services is contrary to compensation of victims of crime it takes a Community law. Specific reliance on Article position analogous to that of a guarantor 62 is no longer necessary, since any new with regard to compensation for harm restriction constitutes an obstacle to which which could not otherwise be redressed, Article 59 applies. harm arising from the infringement of rights which it was the State's duty to protect but which it was not able to guarantee.